BETWEEN : JOHN HOLLAND PTY LTD (ABN 11 004 282 268)

THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

Contempt of court - Alleged breaches of undertaking and injunction - Notice of motion for contempt defective in form - Application for leave to amend - Principles to be applied

First Contemnor : Mr H Borenstein SC & Mr T J Dixon

Second Contemnor : Mr H Borenstein SC & Mr T J Dixon

Third Contemnor : Mr H Borenstein SC & Mr T J Dixon

Fourth Contemnor : Mr H Borenstein SC & Mr T J Dixon

Fifth Contemnor : Mr H Borenstein SC & Mr T J Dixon

Sixth Contemnor : Mr H Borenstein SC & Mr T J Dixon

Carew-Reid & Ors v Carew Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 930254; 23 April 1993

Castledine v Boronga Pty Ltd [2000] WASC 215

Chanel Ltd v FGM Cosmetics (1981) FSR 471

Chiltern District Council v Keane [1985] 1 WLR 619

Harmsworth v Harmsworth [1987] 3 All ER 816

R v Pearce (1991) 7 WAR 395

Re Lovelady [1982] WAR 65

Witham v Holloway (1995) 183 CLR 525

Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342

Attorney-General v Punch Ltd [2002] EWCA Civ 1641; [2003] 1 AC 1046

Attorney-General v Times Newspapers Ltd [1992] 1 AC 191

Australian Building Construction Employees and Builders Labourers' Federation & Ors v Viner & Ors [1982] FCA 131; (1982) 63 FLR 253

Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries (2000) 97 IR 474

Australian Meat Industry Employees' Union & Ors v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98

Biba Ltd v Stratford Investments [1973] 1 Ch 281

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Concrete Constructions Pty Ltd & Anor v Plumbers and Gasfitters Employees' Union & Anor (No 2) [1987] FCA 117; (1987) 15 FCR 64

Consolidated Press Ltd v McRae [1955] HCA 11; (1955) 93 CLR 325

Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13; (2003) 196 ALR 350

Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573

Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588

Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 18 NSWLR 732

Ex parte Langley (1879) 13 Ch D 110

Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127

Kennedy v Lovell [2002] WASCA 226

Marron v Salvemini [1969] WAR 178

R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59

R v West Australian Newspapers Ltd; ex parte Director of Public Prosecutions (WA) (1996) 16 WAR 518

Re Intex Consultants Pty Ltd [1986] 2 Qd R 99

Re Kerly, Son & Verden [1901] 1 Ch 467

Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309

Stancombe v Towbridge Urban District Council [1910] 2 Ch 190

Taylor v Ribby Hall Leisure Ltd [1997] 4 All ER 760

The State of Western Australia v West Australian Newspapers Ltd & Anor; ex parte Attorney General for Western Australia [2005] WASCA 161

Windsurfing International Inc v Sailboards Australia Pty Ltd [1986] FCA 384; (1986) 69 ALR 534

Zaknich v McDonald [2000] WASC 151

1 BLAXELL J: The first, second, third, fourth, and sixth contemnors are defendants to proceedings commenced by the plaintiff in April 2005 claiming an injunction and damages. These claims arise from alleged interference by the defendants in the plaintiff's contractual relations with employees and subcontractors engaged in various construction projects throughout Western Australia.

2 On 1 July 2005 the plaintiff obtained an interlocutory injunction against the defendants restraining them from committing particular acts which would interfere with the performance of those contracts. Previously, the defendants had (on 13 May 2005) provided the Court with an undertaking to the same effect.

3 The plaintiff claims that the defendants breached either their undertaking or the interlocutory injunction on six separate occasions. Although the fifth contemnor is not a defendant in the primary proceedings, the plaintiff asserts that he was a party to at least one of the claimed breaches. Accordingly he and the defendants are alleged to be in contempt of court (and pursuant to O 55 r 1 must be referred to in the present proceedings as "contemnors").

4 By notice of motion dated 10 October 2005 the plaintiff seeks the imposition of fines for the alleged contempts of court. The motion was listed for hearing on 29 May 2006, but prior to then the contemnors lodged written submissions asserting that the notice of motion was deficient in form. The plaintiff then applied for leave to amend the notice of motion but the contemnors opposed the grant of such leave. On 29 May I reserved on the question of whether or not the proposed amendments should be allowed, and I now provide my decision on the plaintiff's application.

The terms of the undertaking and interlocutory injunction

5 The undertaking given to the Court on 13 May 2005 by the defendants in the primary proceedings was in the following terms:

" ... that until after judgment in this action or further order, the Defendants, whether by themselves, their officers, servants, agents or howsoever otherwise shall not interfere or attempt to interfere, directly or indirectly, with the performance of any of the following contracts:

(a) The contract between the Plaintiff and Cape Bouvard Properties Pty Ltd (ACN 056 987 761) for the carrying out of building works on the CTA Building at 12-14 The Esplanade, Perth (CTA Project);

(b) The contract between the Plaintiff and the Public Transport Authority of Western Australia (ABN 61 850 109 576) dated 20 December 2004 for the carrying out of works at the Perth Railway Station known as the Perth Station Barrier Infrastructure Project - Package 1 and 2 (Perth Barrier Project);

(c) The contract between the Plaintiff, Macmahon Contractors Pty Ltd (ABN 37 007 611 485) (Macmahon), Multiplex Constructions Pty Ltd (ABN 70 107 007 527) (Multiplex) and the Public Transport Authority of Western Australia dated 23 May 2004 for the construction of the new South West Metropolitan Railway known as the Perth to Mandurah Rail Infrastructure Project (Package A);

(d) The contract between the Plaintiff and the East Perth Redevelopment Authority in relation to the clean up, building stabilisation and weather proofing of the East Perth Power Station (EPPS Project);

(e) The contract between the Plaintiff, Macmahon and the Commissioner of Main Roads for the construction of an extension to the Tonkin Highway from Mills Road West (Martin) to Thomas Road (Byford) (Stage 6);

(f) The contract between the Plaintiff and Qantas Airways Limited (ABN 16 009 661 901) dated 6 September 2004 in relation to the Checked Bag Screening Project at the Perth Domestic Airport (Qantas CBS Project);

(the projects referred to in paragraphs (a) to (f) together, the John Holland Projects)

(g) The contracts made now or hereafter between the Plaintiff, Macmahon and Multiplex of the one part and sub-contractors for the performance of different aspects of work on Package A;

(h) The contracts made now or hereafter between the Plaintiff and Macmahon of the one part and sub-contractors for the performance of different aspects of work on Stage 6;

(i) The contracts made now or hereafter between the Plaintiff and sub-contractors for the performance of different aspects of work on any of the John Holland Projects;

(the current and future sub-contractors referred to in paragraphs (g) to (i) together, the Subcontractors)

and

(j) The contracts of employment made now or hereafter between the Plaintiff and employees engaged on work on or in connection with any of the John Holland Projects;

(A) directing, inducing, procuring, advising or assisting any person employed now or hereafter by a Subcontractor or the Plaintiff to work on or in connection with any of the John Holland Projects, to breach their contract of employment by failing to attend for work and/or failing to perform work;

(B) imposing or maintaining any bans, limitations or restrictions on the performance of work or the acceptance of work by any person employed now or hereafter by a Subcontractor or the Plaintiff to work on or in connection with any of the John Holland Projects; or

(C) attempting to do or directing, inducing, procuring, advising or assisting any person to do or attempt to do any of the things restrained by (A) or (B) hereof;

(1) the undertaking on behalf of the First Defendant does not include:

a. protected action pursuant to Division 8 of Part VIB of the Workplace Relations Act 1996 (Cth); or

b. action by an employee if the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform; and

(2) the undertaking on behalf of the Second Defendant does not include lawful action pursuant to clause 23 of the John Holland/CFMEUW Industrial Agreement 2002-2005;"

6 The subsequent order for the interlocutory injunction was made by Le Miere J on 1 July 2005 and was in exactly the same terms.

7 The notice of motion alleges that there were four breaches of the undertaking, and two breaches of the interlocutory injunction. The alleged breaches of undertaking are pleaded as follows:

"1. The First to Fourth Contemnors each gave the following undertaking to the Court on 13 May 2005:

[There then follows the undertaking as set out above.]

2. The Fifth Contemnor is the State Secretary of the First Contemnor and the Secretary of the Second Contemnor.

3. The Sixth Contemnor is an industrial organiser with both the First Contemnor and the Second Contemnor.

4. On 23 May 2005 the Fifth Contemnor issued a memorandum instructing delegates of the First Contemnor and the Second Contemnor to engage in unlawful industrial action and to encourage members of the First Contemnor and the Second Contemnor to engage in unlawful industrial action (First Contempt).

5. On 21 June 2005 the Second Contemnor caused to be published on its website a directive to its members to engage in unlawful industrial action on 30 June 2005 (Second Contempt).

6. On 21 June 2005 the First Contemnor and/or the Second Contemnor caused a document to be produced containing a directive to members to engage in unlawful industrial action on 30 June 2005 ('CFMEU Flyer'). The CFMEU Flyer was displayed on the Plaintiff's East Perth Power Station site (Third Contempt).

7. On 29 June 2005 the First Contemnor caused an advertisement to be published in The West Australian newspaper which was authorised by the Fifth Contemnor containing a directive for the First Contemnor's members to engage in unlawful industrial action on 30 June 2005 (Fourth Contempt)."

8 As can be seen, these particulars do not allege that any of the third, fourth, or sixth contemnors were involved in the four breaches of undertaking. The first contempt is said to have been committed by the fifth contemnor, but the particulars do not explicitly plead that he did so on behalf of the first and second contemnors or that they were thereby in contempt. Nor are there any particulars which specify the manner in which the fifth contemnor aided and abetted the breach of undertaking.

9 Similarly, the fourth contempt is said to have been committed by the first contemnor and "authorised" by the fifth contemnor. If this is an allegation that the fifth contemnor was also guilty of that contempt there are no other particulars which specify the manner in which he became a party to that breach of the undertaking.

10 All four contempts are said to have been committed by way of instructions or directions to members of the first and second contemnors to engage in "unlawful industrial action". (I understand this to be an assertion as to the effect of the instructions or directions rather than particulars of the actual words that were used.) Although it is easy to guess why the alleged acts might have been contempts, the particulars do not specify the reasons why such instructions and directions amounted to breaches of the undertaking.

11 The two alleged breaches of the interlocutory injunction are pleaded as follows:

"9. On 7 July 2005 the Third Contemnor and the Fourth Contemnor held a meeting with members engaged by the Plaintiff and sub-contractors of the Plaintiff on the CTA Project and at the meeting advised and/or directed those members to engage in unlawful industrial action on 8 July 2005. On 8 July 2005 the majority of those members failed to attend for work due to alleged illness (Fifth Contempt).

10. On 19 August 2005 the Third Contemnor and the Sixth Contemnor interfered or attempted to interfere, directly and indirectly, with the performance of contracts being the subject of the Order made by the Court on 1 July 2005 in these proceedings, at the Plaintiff's CTA Project site (Sixth Contempt)."

As can be seen, the particulars of the fifth contempt similarly lack specificity as to the manner in which the alleged acts constituted a breach of the interlocutory injunction. Although the acts pleaded in respect of the sixth contempt would constitute a breach, there are no particulars of the conduct which allegedly interfered or attempted to interfere with the performance of contracts.

12 The plaintiff's minute of proposed amendments to the notice of motion seeks to overcome these shortcomings. If the amendments are allowed, the additional particulars will clarify that the directives to engage in unlawful industrial action were attempts to interfere with the performance of contracts referred to in the undertaking and/or order. The particulars will also clarify that the directives were to employees of the plaintiff or of the plaintiff's subcontractors and were for them to breach their contracts of employment.

13 Contempts of court are traditionally categorised as either "criminal contempts" or "civil contempts", and breaches of orders or undertakings fall into the latter category. However the distinction between the two types of contempt has become blurred, and is now considered to be "illusory" (Witham v Holloway (1995) 183 CLR 525, 534). This is because successful proceedings for contempt almost always result in punishment regardless of whether they are brought for the purpose of vindicating the authority of the court or for the purpose of obtaining obedience to orders in the interests of private litigants. It follows that all proceedings for contempt "must realistically be seen as criminal in nature" requiring proof (even of "civil" contempts) to the criminal standard beyond reasonable doubt (Witham v Holloway (ibid) at 534).

14 In Western Australia, "the offence commonly known as 'contempt of court' " is preserved by s 7 of the Criminal Code Act 1913 as this State's only common law offence (Re Lovelady [1982] WAR 65, 66). Accordingly, proceedings for contempt of court are not governed by the Criminal Procedure Act 2004, but by the common law and by O 55 of the Rules of the Supreme Court. For this reason the statutory provisions for amendment of indictments, and the rules for amendment of civil pleadings, have no bearing on an application to amend a notice of motion for contempt. The procedure in contempt proceedings is "in the true sense peculiar" (Re Lovelady (ibid) at 66).

15 Order 55 r 5(1) requires that a notice of motion seeking punishment for a contempt of court should "specify" the contempt alleged. This means that the allegation of contempt must be made "in sufficient detail and particularity in order to enable the person alleged to be in contempt to have before him or her enough information to enable him or her to meet the charge" (Carew-Reid & Ors v Carew Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 930254; 23 April 1993).

16 In Chiltern District Council v Keane [1985] 1 WLR 619 it was held that this requirement for particularity in the notice of motion must be strictly complied with and that it is not enough to state the grounds of the application in general terms. What is required is that the person alleged to be in contempt should know "exactly" what he is said to have done or omitted to do which constitutes the contempt of court.

17 It is also clear that any deficiency in the particulars which goes to the substance of the charge of contempt, cannot be made good by reference to the affidavit evidence (Carew-Reid v Carew Corporation Pty Ltd (ibid)). This is so even if the nature of the case alleged can be readily ascertained from the supporting affidavits (Chanel Ltd v FGM Cosmetics (1981) FSR 471, 478). In Harmsworth v Harmsworth [1987] 3 All ER 816, 821, Nicholls LJ held that the following test should be applied when determining the sufficiency of particulars in a notice of motion:

" ... does the notice give the person alleged to be in contempt enough information to enable him to meet the charge? In satisfying this test it is clear that in a suitable case if lengthy particulars are needed, they may be included in a schedule or other addendum either at the foot of the notice or attached to the notice so as to form part of the notice rather than being set out in the body of the notice itself. But a reference in the notice to a wholly separate document for particulars that ought to be in the notice seems to me to be a quite different matter. I do not see how such a reference can cure what otherwise would be a deficiency in the notice. As I read the rules of court and as I understand the decision in the Chiltern case the rules require that the notice itself must contain certain basic information. That information is required to be available to the respondent to the application from within the four corners of the notice itself. From the notice itself the person alleged to be in contempt should know with sufficient particularity what are the breaches alleged. A fortiori, in my view, where the document referred to is an affidavit, which does not set out particulars in an itemised form, but which leaves the respondent to the committal application to extract and cull for himself from an historical narrative in the affidavit relevant dates and times and so forth, and to work out for himself the precise number of breaches being alleged and the occasions on which they took place."

18 Because of the criminal nature of contempt proceedings, leave to amend a defective notice is granted sparingly and only in instances involving minor amendments. In R v Pearce (1991) 7 WAR 395, 405, amendments to the notice of motion were allowed only to the extent that there "was nothing new of any significance". Similarly, in Carew-Reid v Carew Corporation Pty Ltd (ibid) the Full Court refused leave to amend because the proposed amendment sought to rectify "a substantial defect in the original pleading of the contempt going to matters which were the substance of the charge". Again, in Castledine v Boronga Pty Ltd [2000] WASC 215 Anderson J (at [26]) held that:

" ... leave to amend a charge of contempt will not be granted if the original charge is seriously defective and the amendments which are sought are substantial: Carew-Reid & Ors v Carew Corporation Pty Ltd (supra) at 15. Where the original pleading of contempt is completely devoid of particulars and is on that account substantially defective, it is not a proper exercise of discretion to allow the person bringing the charge to cure that basic deficiency by amendment."

19 In the present matter, the notice of motion is clearly defective in that it fails to adequately particularise the alleged contempts of court. Although the supporting affidavits outline the substance of the allegations against the contemnors, these materials cannot be used to fill the gaps in the notice of motion. The amendments that are proposed are substantial, and in light of the authorities that I have referred to, it is inevitable that the application for leave to amend must be refused.